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IRS changes instructions for Forms 5471 and 8621

Form 5471:

  1. IRS now requires a creation of Refrence ID of the foreign corporation and this must be completed for all years ending on or after December 31, 2012.
  2. According to AICPA – “ The most notable change and one that the AICPA has recently addressed in a comment letter to the IRS, is the constructive ownership exception which was previously available to Category 3 and 4 filers only. The exception has now been extended to all Category 5 filers where ownership in the foreign corporation is solely through application of constructive ownership principles and the U.S. person through whom the U.S. shareholder constructively owns an interest in the foreign corporation files Form 5471 reporting all required information. “
  3. Other changes can be found in “What’s new” section of Form 5471.

Form 8621:

  1. In the filer identification section, a line has been added to request the reference ID number of the PFIC or QEF.
  2. New Part I, Summary of Annual Information was added to reflect the new annual filing requirement of section 1298(f) which was added by section 521 of the Hiring Incentives to Restore Employment Act of 2010. However, this new Part I is not required until the underlying regulations are published. For now, they have been marked as Reserved For Future Use. Form 8621 will be revised when Part I becomes effective.
  3. The elections in Part II of the form have been reordered and the filing requirements for new elections F, G, and H have been modified. Please complete Part II carefully with these changes in mind.
  4. See instructions for all changes very carefully.

The Substantial Presence Test for U.S. Residency Status

Residency Status Determines Your Tax Bill

If you are neither a citizen nor a permanent resident of the United States, you must determine your U.S. residency status for tax purposes. If you are a nonresident for tax purposes, you file a special tax form (Form 1040NR), pay tax only on U.S. source income, are subject to special rates on investment income, and might benefit from exemptions from income conferred by the tax treaty between the United States and your home country.

If you are a resident taxpayer, you must report your worldwide income for U.S. tax purposes. You are also eligible to claim deductions and credits available to U.S. citizens. You can file Form 1040, 1040A, or 1040-EZ, whichever is applicable to your situation, and if you are married you can file a joint return with your spouse. Additionally, you still might be eligible for treaty benefits in certain situations.

It’s Not Your Immigration Status That Counts

Your residency status for tax purposes is completely separate from your immigration status. Even though you arrived in the United States as a non-immigrant visa holder, you might be a U.S. resident for tax purposes.

So, if you are not a citizen or permanent resident of the United States, how do you determine your residency status for tax purposes? You look to the “substantial presence test” set forth in Section 7701(b)(3) of the Internal Revenue Code. To meet the substantial presence test for the current year, you must be physically present in the United States during a period you are not an “exempt individual” on at least:

1) 31 days during the current year, and

2) 183 days during the three-year period that includes the current year and the previous two years, counting:

* all of the days you were present in the current year, 
* 1/3 of the days you were present in the first preceding year, and
* 1/6 of the days you were present in the second preceding year.

For example, let’s say you were present in the United States for 120 days in 2010, 222 days in 2011, and 80 days in 2012. In applying the substantial presence test to 2012, you count 20 days from 2010 (120 x 1/6) +74 days from 2011 (222 x 1/3) +80 days from 2012 = 174 days. That means that you did not pass the substantial presence test (< 183) and are not a resident of the U.S. for tax purposes for 2012. 

Exempt Individuals

An exempt individual is someone whose days in the United States are not counted toward the substantial presence test. It is not someone who is exempt from taxation. If you are an exempt individual, you are a nonresident for tax purposes until you are no longer an exempt individual, or until you receive permanent residency status. You are generally in this category if you are:

* Temporarily present in the United States as a foreign government related individual (A or G visa holder). 
* A teacher or training temporarily present in the United States under a J or Q visa, who substantially complies with the requirements of the visa.
* A student temporarily present in the United States under an F, J, M or Q visa, who substantially complies with the requirements of the visa.
* A professional athlete temporarily present in the United States to compete in nature will sporting event.

Teacher or trainee. If you are a teacher or trainee temporarily in the United States on a J or Q visa, and you have been present in the United States during no more than two calendar years out of the last six calendar years, you are an exempt individual. For example, let’s say you entered the U.S. on December 28, 2009 as a trainee on a J visa, and stayed in the U.S. continuously through 2011. Your days in the United States are exempt from the substantial presence test for 2009 and 2010, but they all count in 2011 and later years if you remain in the United States.

There is an exception to this rule. If all of your compensation during the prior six years  is from a foreign employer, the two year exemption period is extended to four years.

Student. If you are a student temporarily in the United States on an F, J, M, or Q visa, and you have been present in the United States during no more than five calendar years, you are an exempt individual. For example, let’s say you entered the U.S. on June 4, 2007 as an F-1 student visa holder, and have remained here until 2012. You are a nonresident alien for 2007, 2008, 2009, 2010, and 2011. If you are in the U.S. for at least 183 days in 2012, you will be a resident for tax purposes in 2012.

Members of the family. If you are an exempt individual, members of your immediate family who are with you in the United States on visas derived from your visa (J-2, F-2, etc.) are also exempt individuals.

Dual Status Aliens

If you are classified as a resident for tax purposes during part of a year, and a nonresident for the rest of the year, you are a dual status alien for tax purposes and are required to file a dual status return. This sometimes occurs during the year you enter the United States, during a year in which you change your visa status from an exempt individual to a non-exempt individual, or vice versa, or when you become a permanent resident.

There are several provisions, both statutory and through tax treaties, that allow you to elect to be treated as a full-year resident, a full-year nonresident, or a dual status alien in particular situations, if the choice is beneficial.

Confused?

Well, this is a confusing topic, but one that is very important. Don’t worry – there is an interactive questionnaire at www.form1040NR.com that you can use to guide you to the correct result. In the header menu go to “Your Tax Residency” and answer the questions (after reading them very carefully). If you are still confused, I would be happy to answer your questions.

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